EMS Lawline: After Much Criticism, OSHA Issues New Guidance on COVID-19 in the Workplace

Steve Wirth, Esq., EMT-P

Since the pandemic began, the key federal agency that establishes and enforces safety standards – the Occupational Safety and Health and Administration (OSHA) has been criticized tremendously for failure to implement appropriate standards and guidance related to COVID-19 and for the lack of enforcement of existing standards in the healthcare setting. There have been thousands of complaints by healthcare workers related to a wide range of safety issues, including lack of adequate PPE and failure to establish and follow existing safety standards.

One of President Biden’s first actions – the day after the inauguration – was to issue an “Executive Order on Protecting Worker Health and Safety.” The order directs Congress to authorize OSHA to create a COVID-19 protection standard that protects workers from unsafe working conditions and from retaliation for reporting unsafe conditions related to the pandemic. Numerous employee groups, including unions such as the National Nurses United, have strongly advocated for a specific COVID-19 standard amid concerns and frustrations that health care workers are working under unsafe conditions in some health care settings.

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According to the executive order, “[e]nsuring the health and safety of workers is a national priority and a moral imperative.” The order calls for the Department of Labor (DOL) to issue revised guidance on COVID-19 related workplace safety, consider emergency temporary measures related to COVID-19, and to review the enforcement efforts related to COVID-19. 

As part of this renewed executive branch focus on worker safety, on January 29, 2021, OSHA issued updated guidance designed to help employers implement COVID-19 prevention programs to better identify and address workplace safety risks that could lead to COVID-19 exposure. This guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” is the first time OSHA has updated its general workplace guidance since the start of the pandemic last March. 

There is still no COVID-specific OSHA standard, and the new guidance is advisory in nature and is primarily for non-healthcare settings. But it provides a “roadmap” for EMS agencies to follow in developing a meaningful workplace safety compliance program for COVID-19. It is based on four key areas that should be addressed in an effective “COVID-19 Compliance Program.”  

1. Conduct a Hazard Assessment to Determine Exposure Risks

Employers should conduct a thorough hazard assessment (a/k/a “risk assessment”) to identify potential workplace hazards related to COVID-19, and this assessment should be documented.  OSHA recommends involving frontline workers and their representatives “since they are the people most familiar with the hazards and potential hazards.” OSHA has issued “Hazard Recognition” guidance related to COVID-19 that discusses the various levels of exposure risk of various job types.

2. Identify Measures to Limit the Spread of COVID-19 at Work

Employers should establish a combination of methods to eliminate COVID-19 hazards, such as engineering controls, workplace administrative policies, personal protective equipment (PPE), and other measures. The controls should be prioritized from most to least effective, to better protect workers from COVID-19 hazards. All these things should be part of an overall workplace safety program, and existing programs can be modified to include a focus on COVID-19.

3. Adopt Measures to Ensure Infected/Potentially Infected Employees Are Removed from the Workplace

Employers should ensure that employees who have symptoms upon arrival at work or who develop symptoms during work are immediately  separated from others – and sent home and encouraged to seek medical attention. A key recommendation is to ensure that attendance policies are non-punitive. Policies that encourage workers to come to work sick or when they have been exposed to COVID-19 are “disfavored.” This requires EMS employers to “rethink” and adapt the traditional mandatory attendance policies to be more flexible to reduce the potential for COVID-19 spread.

OSHA recommends that when possible, employees should be allowed to telework, or work in an area isolated from others. If that is not possible, OSHA suggests that paid sick leave should be used if available, or employers should consider implementing paid leave policies to reduce workplace risk. Even though the required paid leave of absence provisions of the Families First Coronavirus Response Act (FFCRA) expired at the end of 2020, the FFCRA still provides many EMS employers 100% reimbursement through tax credits to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 through March 31, 2021. The IRS has issued comprehensive FAQs on the COVID-19 related tax credits.

4. Establish Protections from Retaliation for Employees Who Raise COVID-19 Concerns

A key fear of employees is being terminated or retaliated against for expressing good-faith concerns about COVID-19 hazards in the workplace. In August of 2020, the Department of Labor (DOL) Office of Inspector General (OIG) released a report which found that OSHA has been woefully inadequate in investigating complaints in a timely manner and must improve its handling of whistleblower complaints. A more critical report by the National Employment Law Project (NELP) in October of 2020 found that OSHA had resolved only 2% of COVID-19-related retaliation complaints during the first six months of the pandemic.

EMS employers need to establish anti-retaliation policies so that employees are encouraged to report potential safety concerns in the workplace without fear of retribution or losing their job.

The guidance expands on these four fundamental elements with 15 specific recommendations for employers to consider. Many of these recommendations clarify or expand upon existing guidance based on the science and best practices learned during the pandemic. 

Among the most notable of these 15 elements are:

Establishing a “COVID-19 Workplace Coordinator”

This is a new recommendation that employers assign a key individual to be overall responsible for handling COVID-19 issues, such as employee complaints or concerns. In effect, this would be a “compliance officer” for workplace safety. EMS agencies could consider adding this responsibility to the existing compliance or infection control officer duties.

Improving Employee Engagement and Communication – Including an Anonymous Hotline

The guidance emphasizes the importance of developing and communicating regularly with employees with policies designed to provide basic facts about COVID-19, preventive measures, and clearly articulated procedures on how to protect employees from COVID-19 hazards. A key aspect of this recommendation is the establishment of an anonymous process for employees to voice concerns about COVID-19 hazards. This could include a “hotline,” anonymous email account, or an outside entity to receive and process workplace safety concerns related to COVID-19. This could be the same hotline or process that is used for HIPAA and general Medicare compliance programs that many EMS agencies already have in place.

Recording and Reporting Work-Related COVID-19

The guidance emphasizes the importance of the employer’s responsibility for recording related cases of COVID-19 on OSHA Form 300 logs. Reporting is required if: (1) the case is a confirmed case of COVID-19; (2) the case is work-related (as defined by 29 CFR 1904.5); and (3) the case involves one or more relevant recording criteria (set forth in 29 CFR 1904.7) (e.g., medical treatment, days away from work). Employers are required to follow the requirements in 29 CFR 1904 when reporting COVID-19 fatalities and hospitalizations to OSHA. See OSHA’s “Revised Enforcement Guidance for Recording Cases of COVID-19” for more information.  

It is very likely that OSHA will place greater emphasis on reporting and record-keeping requirements that were relaxed under the previous administration given President Biden’s articulated focus on the workplace hazards of COVID-19. 

This new guidance also emphasizes other existing OSHA requirements already in place. These include the “general duty clause” for employers to provide a safe workplace, requirements for PPE, respiratory protection, sanitation, protection from bloodborne pathogens, recordkeeping and reporting, and employee access to medical and exposure records.

Under the executive order, OSHA is directed to issue an emergency temporary standard for COVID-19 by March 15, if it deems a temporary standard necessary. It is quite likely that recommendations from this most recent guidance will become part of any emergency standard or a more permanent standard related to workplace protections from COVID-19. Stay tuned. Much activity is on the horizon that will impact employee safety in the EMS workplace in the coming months. Now is the time to consider applying the recommendations of this most recent OSHA guidance – before it becomes a formalized standard.   

Steve Wirth is a founding partner of Page, Wolfberg & Wirth, LLC. and has been involved in all facets of EMS from field provider to EMS attorney in a career that spans over 40 years. He has authored or co-authored hundreds of articles, blogs, and book chapters on a wide range of EMS leadership, reimbursement, risk management, compliance, and workplace law topics. He can be reached at: swirth@pwwemslaw.com    

For over 21 years, PWW has been the nation’s leading EMS industry law firm. PWW attorneys and consultants have decades of hands-on experience providing EMS, managing ambulance services and advising public, private and nonprofit clients across the U.S. PWW helps EMS agencies with reimbursement, compliance, HR, privacy and business issues, and provides training on documentation, liability, leadership, reimbursement and more. Visit the firm’s website at www.pwwemslaw.com. This article is not intended as legal advice.

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